Robert Houghwout Jackson (February 13,
1892–October 9, 1954) was United States Attorney
General (1940–1941) and an
Associate Justice of the United States Supreme
Court (1941–1954). He was also the chief United States
prosecutor at the Nuremberg Trials. A "county-seat lawyer", he remains the last
Supreme Court justice appointed who did not graduate from any law
school (though Justice Stanley Reed who served from
1938-1957 was the last such justice to serve on the court). He is
remembered for his famous advice, that "...any lawyer worth his
salt will tell the suspect in no uncertain terms to make no
statement to the police under any circumstances."[1]

Early
life

Born in Spring
Creek Township, Warren County, Pennsylvania, and raised in Frewsburg,
New York, Jackson graduated from Frewsburg High School in 1909
and spent the next year as a post-graduate student attending Jamestown High School
in Jamestown, New York. Jackson did not attend college as an
undergraduate. At age 18, he went to work as an apprentice in a
Jamestown law office, then attended Albany Law School, in Albany, New
York, where he completed the second year of the two-year
program. During the summer of 1912, Jackson returned to Jamestown.
He apprenticed again for the next year. He passed the New YorkBar Exam in 1913 at the
age of 21 and set up practice in Jamestown, New York. Over the next
20 years, he became a very successful lawyer in New York State and,
through bar association activities, a rising young lawyer
nationally.

U.S.
Federal appointments and politics, 1934–1940

Jackson was appointed to federal office by President Franklin Delano Roosevelt in 1934. Jackson
served initially as general counsel of the U.S. Treasury
Department's Bureau of Internal Revenue (today's Internal
Revenue Service). In 1936, Jackson became Assistant Attorney
General heading the Tax Division of the Department of Justice,
and in 1937 he became Assistant Attorney General heading the
Antitrust Division. In 1938, Jackson became United States Solicitor
General, serving until January 1940 as the government's chief
advocate before the Supreme Court.

Mr. Jackson was a prominent member of the New Deal, litigating against the excesses of
wealthy corporations and utility holding companies.[2]
He participated in the 1934 prosecution of Samuel Insull[3], the
1935 income tax case against Andrew Mellon,[4][5][6] and the
1937 anti-trust case against Alcoa, in which the Mellon family held an
important interest.[7]

U.S. Attorney
General, 1940–1941

Jackson was appointed Attorney General by Roosevelt in 1940,
replacing Frank
Murphy. As Attorney General, Jackson supported a bill
introduced by Sam Hobbs
that would have legalized wiretapping by the FBI, or any other
government agency, if it was suspected that a felony was occurring.[8] The
bill was opposed by FCC chairman James Lawrence Fly, and did not
pass.[9]

U.S. Supreme Court,
1941–1954

In 1943, Jackson wrote the majority opinion in West
Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943),
which overturned a public school regulation making it mandatory to
salute the flag and imposing penalties of expulsion and prosecution
upon students who failed to comply. Jackson's stirring language in
Barnette concerning individual rights is widely quoted.
Jackson's concurring opinion in 1952's Youngstown Sheet
& Tube Co. v. Sawyer (forbidding President Harry
Truman's seizure of steel mills during the Korean War to avert a
strike), where Jackson formulated a three-tier test for evaluating
claims of presidential power, remains one of the most widely cited
opinions in Supreme Court history (it was quoted repeatedly by
Supreme Court nominees John Roberts and Samuel Alito during
their recent confirmation hearings).

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Feud with
Black

Justices Jackson and Hugo Black had profound professional and
personal disagreements dating back to October 1941, the first term
in which they served together on the Supreme Court. According to
Dennis Hutchinson, editor of The Supreme Court Review,
Jackson objected to Black’s practice of importing his personal
preferences into his jurisprudence.[10]
Hutchinson quotes Jackson as having remarked, “With few exceptions,
we all knew which side of a case Black would vote on when he read
the names of the parties.”[11] While
Hutchinson points out that Jackson objected to Black's style of
jurisprudence in such cases as Minersville v. Gobitis (1940) and
United States v. Bethlehem Steel (1942), Black’s
involvement in the Jewell Ridge case struck Jackson as especially
injudicious.

In Jewell Ridge Coal Corp. v. Mine
Workers (1945), the Supreme Court faced the issue of
whether to grant the coal company’s petition for rehearing on the
grounds that the victorious miners were, in a previous matter,
represented by Crampton P. Harris, who was Justice Black’s former
law partner and personal lawyer. Despite this apparent conflict of
interest, Black lobbied the Court for a per curiam denial of the
petition. Justice Jackson objected, with the result that Jackson
filed a concurrence disassociating himself from the ruling and, by
implication, criticizing Black for not addressing the conflict of
interest. Jackson also strongly objected to Black’s judicial
conduct in Jewell Ridge for another reason. As Jackson
later alleged, while Justice Murphy was preparing his opinion,
Black urged that the court hand down its decision without waiting
for the opinion and dissent. In Jackson’s eyes, the "only apparent
reason behind this proposal was to announce the decision in time to
influence the contract negotiations during the coal strike" between
the coal company and the miners, which was taking place at the
time.[12]

Jackson probably regarded Black’s conduct as unbecoming of a
Supreme Court Justice in another related matter. On April 3, 1945,
The Southern Conference for Human Welfare held a dinner, at which
it honored Justice Black as the 1945 recipient of the Thomas
Jefferson Award. Fred M. Vinson, interestingly, spoke at
the dinner. While Jackson declined an invitation to the event,
citing a conflict arising out of the fact that a number of leading
sponsors of the dinner were then litigants before the Supreme
Court, Black attended the dinner and received his award. Crampton
Harris, counsel in two pending cases, Jewell Ridge and
CIO v. McAdory (1945), was one of the sponsors.[13]

Jackson would later take these grievances public in two public
cables from Nuremberg. Jackson had informally been promised the
Chief Justiceship by Roosevelt; however, the seat came open while
Jackson was in Germany, and FDR was no longer alive. President Harry S. Truman
was faced with two factions, one recommending Jackson for the seat,
the other advocating Hugo
Black. In an attempt to avoid controversy, Truman appointed Fred M. Vinson.
Jackson blamed machinations by Black for his being passed over for
the seat and publicly exposed some of Black's controversial
behavior and feuding within the Court. The controversy was heavily
covered in the press and cast the New Deal Court in a negative light and had the
unfortunate effect of tarnishing Jackson's reputation in the years
that followed.

On June 8, 1946, Jackson sent a cable to President Truman.
Jackson’s cable to Truman began with an insincere offer of
congratulations to the President for his appointment of Vinson.
But, the cable then quickly addressed the rumor, which Jackson had
gotten wind of in Nuremberg, that Truman had appointed Fred Vinson
in part to avert a resignation on the part of Justice Black. Rumors
had been circulating in Washington that Black would resign in the
event that Truman chose Jackson as Chief Justice Stone’s successor.
"I would be loathe to believe that you would concede to any man a
veto over court appointments".[14]
Jackson closed his cable by stating that he could not continue his
service as an Associate Justice under Vinson if an associate "had
something on [him]", which would disqualify him from serving, or if
he, Truman, regarded Jackson’s opinion in the Jewell Ridge
case as a "gratuitous insult" to Justice Black.[15]

After receiving a response from Truman in which he denied having
given consideration to, or having even heard of, the rumor of
Black’s threatened resignation, Jackson rashly fired off a second
cable to Congress on June 10. This cable stated Jackson's reasons
for his belief that Justice Black faced a conflict of interest in
Jewell Ridge, from which he wrongfully, at least, in
Jackson's eyes, did not recuse himself, and ended with Jackson's
threat that if such a practice "is ever repeated while I am on the
bench I will make my Jewell Ridge opinion look like a
letter of recommendation by comparison".[16]

Jackson and Dennis v.
United States

1. The Clear and
Present Danger Test

In order to understand Jackson’s concurrence in Dennis v. United States, a
basic understanding of the origin of the clear and present danger
test is helpful.

In 1919, the Supreme Court decided Schenck v. United
States.[17] In
Schenck, the petitioners, members of the Socialist Party, were
convicted of violating the Espionage Act of 1917 for
printing and distributing circulars asserting that American
citizens had a right to oppose the draft during World War I because,
among other things, it violated the United States Constitution.[18] The
Schenck Court promulgated the clear and present danger test which
provided the standard for sustaining a conviction when speech is
relied upon as evidence that an offense has been committed.[19]
Justice Holmes, writing for a unanimous court, affirmed the
convictions of the lower court positing:

“We admit that in many places and in ordinary time the
defendants in saying all that was said in the circular would have
been within their constitutional rights. But the character of every
act depends upon the circumstances in which it is done. . . . The
question in every case is whether words used in such circumstances
and are of such a nature as to create a clear and present danger
that they will bring about the substantive evils that Congress has
a right to prevent. It is a question of proximity and degree.”[20]

For more on the Clear and Present Danger Test, see Erwin
Chemerinsky, Constitutional Law: Principles and Policies, 957
(Aspen 2ed. 2002) (the clear and present danger test appears to
have three analytical elements: (1) probability of harm, (2)
temporality of harm, and (3) degree of harm).

2.
Dennis v. United States

a.
Background

In 1951, the Supreme Court decided Dennis v. United
States.[21] In
Dennis, the Petitioners were zealous Communists who organized for
the purpose of teaching the “Marxist-Leninist Doctrine”.[22] The
principal texts used to teach the doctrine were: History of the
Communist Party of the Soviet Union; Foundations of Leninism by Stalin; The
Communist Manifesto by Marx and Engels; and State and Revolution by
Lenin.[15]
The Petitioners were convicted for violating §2 and §3 of the Smith
Act which, among other things, made it unlawful to conspire to
organize a group which advocates the overthrow of the United States
government by force of violence.[23] The
issue before the Supreme Court was “[w]hether either §2 or §3 of
the Smith Act, inherently or as construed and applied in the
instant case, violates the First Amendment of other provisions of
the Bill of Rights…”[24]

b.
Jackson's Concurrence

In Dennis, Jackson concludes that the clear and present danger
test (the “Test”) should not be applied.[25] To
this end, Jackson analyzed: the effect Communists had outside the
United States; the nature of Communists; and the problems with
applying the Test. Jackson’s analysis can be summarized as
follows:

On the effect Communists historically had on foreign countries,
Jackson analyzed their effect on Czechoslovakia.[26] In
Czechoslovakia, a Communists organization disguised as a competing
political faction secretly established its roots in key control
positions “of police and information services”.[15]
During a period of national crisis a clandestine Communist
organization appeared and successfully overthrew the
Czechoslovakian government.[15]
Establishing control of mass communication and industry, the
Communist organization’s rule was one of “oppression and
terror”.[15]
Ironically, as Jackson points out, the Communist organization
suppressed the very freedoms which made its conspiracy
possible.[15]

On the nature of Communists, Jackson characterizes them as an
extraordinarily dedicated and highly selective group disciplined
and indoctrinated by Communist policy.[27] The
goal of Party members is to secretly infiltrate key positions of
government, industry, and unions and to leverage their power once
in such positions.[15]
Jackson goes on to say that although “Communist[s] have no scruples
against sabotage, terrorism, assassination, or mob disorder …” they
“advocate[] force only when prudent” which “may never be necessary,
because infiltration and deception may be enough.”[28]

On the problems with applying the Test in Dennis, Jackson deems
significant that the Test was authored “before the era of World War II revealed
the subtlety and efficacy of modernized revolutionary technique
used by totalitarian parties.”[29]
Jackson believed that the application of the test should be limited
to cases bearing strong enough likeness to those for which it was
originally crafted – i.e. “criminality of hot-headed speech on a
street corner, or parading by some zealots behind a red flag, or
refusal of a handful of school children to salute our flag …”[15]
Expressing strong concern that the expansive construction the Court
had recently given the Test in Bridges v. State of California[30],
Jackson asserted that the Test provided Communists with
“unprecedented immunities” while “Government is captive in a
judge-made verbal trap”.[29]
Jackson goes on to describe the application of the Test to
Communists when determining the constitutionality of the Smith Act
facially or as applied as one of “apprais[ing] imponderables,
including international and national phenomena which baffle the
best informed foreign offices and our most experienced
politicians”[31]

Jackson concludes his First Amendment analysis in Dennis by
asserting that:

“The authors of the clear and present danger test never applied
it to a case like this, nor would I. If applied as it is proposed
here, it means that the Communist plotting is protected during its
period of incubation; its preliminary stages of organization and
preparation are immune from the law; the Government can move only
after imminent action is manifest, when it would, of course, be too
late.”[15]

c.
Conclusion

In the end the Court applied its own version of the clear and
present danger test in Dennis[32]
essentially disregarding the analytical elements of probability and
temporality which had previously appeared to be requirements of the
doctrine.[33]
Jackson, however, as one commentator put it, expressed in Dennis
(at least with regards to Communists) that “when used as part of a
conspiracy to act illegally, speech loses its First Amendment
protection.”[34]

Jackson’s hardened stance on the First Amendment in Dennis may
be attributed to strong anticommunist sentiment which had a grip on
Americans during the time of the decision.[35] In
William Wiecek’s article discussing the history of anticommunism in
the United States, Wiecek’s asserts that:

“[T]he manufactured image of the domestic Communist, cultivated
and propagated by [J. Edgar] Hoover, the Catholic Church, the American
Legion, and political opportunists, made of Communists
something less than full humans, full citizens, fully
rights-endowed. Even sophisticated jurists like … Robert Jackson
were captives of that image, anesthetizing [his] sensitivity to
deprivation of rights.[36]... In
Dennis and other Communist cases between 1950 and 1956, the Supreme
Court overcame the problem of facts not supporting the results it
was determined to reach by accepting a generic ‘proof’ of
Communism’s seditious nature. Disregarding all evidence of both the
Party’s and individual members’ renunciation of violence, the Court
substituted literary evidence from outdated classics of
Marxism-Leninism, most written by Europeans of an earlier era, and
refused to consider whether the living people before them actually
subscribed to those doctrines…”[37]

For more on the evolution of anticommunism in the United States
leading up to the Dennis decision, see generally William M. Wiecek,
The Legal Foundation of Domestic Anticommunism: The Background
of Dennis v. United States, 2001 Sup. Ct. Rev. 375, 429
(2001).

Justice
Jackson and Brown v. Board of Education

One of Jackson's law
clerks during 1952-53, William H.
Rehnquist, was appointed to the Supreme Court in 1971 and
became Chief Justice in 1986. In December 1971, after Rehnquist's
nomination had been approved by the Senate Judiciary Committee and
was pending before the full Senate, a 1952 memorandum came to light
that he had written as Jackson's law clerk in connection with the
landmark case, Brown v. Board of
Education that argued in favor of affirming the
separate-but-equal doctrine of Plessy v. Ferguson. Rehnquist
wrote a brief letter attributing the views to Jackson and was
confirmed. In his 1986 hearing he was questioned about the matter.
His explanation of the memorandum was disputed in both 1971 and
1986 by Jackson's former secretary, and scholars have questioned
its plausibility. However, the papers of Justices Douglas and
Frankfurter indicate that Justice Jackson only voted for
Brown in 1954 after changing his mind.[38]

The ultimate views of Justice Jackson about Brown can
be found in his 1954 unpublished draft concurrence.[39][40][41] The
“Memorandum by Mr. Justice Jackson, March 15, 1954”, is publicly
available with Jackson’s papers in the Library of Congress and did
not become publicly available until after Rehnquist’s 1986 hearing
for Chief Justice of the
United States. Jackson’s draft concurrence in Brown,
divided into four parts, shows how he struggled with how to write
an effective opinion to strike down segregation. In Part 1 of
Jackson’s draft concurrence in Brown, he wrote that he
went to school where “Negro pupils were very few” and that he was
“predisposed to the conclusion that segregation elsewhere has
outlived whatever justification it may have had.” Despite his own
opinions regarding desegregation, Jackson acknowledged the
inability of the Court to "eradicate" the "fears, prides and
prejudices" that made segregation an important social practice in
the South. Jackson thus concluded that the Northerners on the court
should be sensitive to the conditions that brought segregation to
the South.

In Part 2 of the draft memorandum, Justice Jackson described the
legal framework for forbidding segregation in “DOES EXISTING LAW
CONDEMN SEGREGATION?”. Jackson notes the difficulty for the court
that was "supposed not to make new law but only to declare existing
law," to overturn a decision of such longevity as Plessy.
Looking at the doctrine of original intent with regard to the
Fourteenth Amendment, Justice Jackson found no evidence that
segregation was prohibited, particularly since states that ratified
the Fourteenth Amendment had segregated schools at the time.
Jackson concluded, "I simply cannot find in the conventional
material of constitutional interpretation any justification for
saying" that segregated schools violated the Fourteenth
Amendment.

In Part 3 of the draft memorandum titled “ENFORCEMENT POWER
LIMITS” describes enforcement by Congress of the Fourteenth
Amendment. Jackson addressed the possibility of leaving enforcement
to Congress, particularly because the “courts have no power to
enforce general declarations of law." Jackson noted that while
segregation was already fading in some states, it would be
difficult to overcome in those states where segregation was firmly
established. While Jackson recognized the difficulties in the
Supreme Court enforcing its judgment, he did not want the task to
be left to the lower courts as suggested by the Government. Jackson
concluded that the court must act because “our representative
system has failed” and even though this “premise is not a sound
basis for judicial action."

Finally, in Part 4 of the draft memorandum “CHANGED CONDITIONS”
Jackson began by stating that prior to Brown, segregation
was legal. According to Jackson, the premise for overruling
Plessy was the now erroneous "factual assumption" that
"there were differences between the Negro and the white races,
viewed as a whole." The draft asserted that the "spectacular"
progress of African-Americans, under adverse circumstances,
"enabled [them] to outgrow the system and to overcome the
presumptions on which it was based." Jackson emphasized that the
changed conditions along with the importance of a public education
required the court to strike down separate but equal in public
education. While Jackson could not justify the decision in
Brown in law, he did so on the basis of a political and
social imperative. It is unknown if Jackson ever intended to
publish this concurrence.

Justice Jackson was in the hospital from March 30 to May 17,
1954. It is reported that Chief Justice Warren visited Jackson in
the hospital several times and discussed both Jackson’s draft
opinion and Warren’s drafts. One suggestion that Warren took from
Jackson was adding “Negroes have achieved outstanding success in
the arts and sciences as well as in the business and professional
world.” [39]
This quote is tied to the arguments in Part 4 of Jackson’s draft
opinion. On May 17, 1954, Jackson went to the Court from the
hospital so he could be there the day the Brown decision
was handed down. When the Brown decision was handed down,
a full court was present to emphasize the unanimity of the
decision. Robert H. Jackson died on October 8, 1954 and so there
was not enough time between Brown and the death of Jackson
to fully explore his views on desegregation.

International
Military Tribunal, 1945–1946

In 1945, President Truman appointed Jackson, who took a leave of
absence from the Supreme Court, to serve as U.S. chief of counsel
for the prosecution of Nazi war criminals. He helped draft the London
Charter of the International Military Tribunal, which created
the legal basis for the Nuremberg Trials. He then served in
Nuremberg, Germany, as
United States chief prosecutor at the international Nuremberg
trial. Jackson pursued his prosecutorial role with a great deal of
vigor (for instance, referring in arguments to Hermann
Göring as being "half militarist, half gangster"). His opening
and closing arguments before the Nuremberg court are widely
considered among the best speeches of the 20th century. In the
words of defendant Albert Speer:

“

The trial began with the
grand, devastating opening address by the chief American
prosecutor, Justice Robert H. Jackson. But I took comfort from one
sentence in it which accused the defendants of guilt for the
regime's crimes, but not the German people.[42]

”

Afterword

Jackson died in Washington, DC, at the age of 62 and, after
funeral services in Washington's National Cathedral and then in
Jamestown's St. Luke's Church, was interred near his boyhood home
in Frewsburg, New York.

Jackson was played by Alec Baldwin in the 2000 TNT television film Nuremberg,
based on the novel Nuremberg: Infamy on Trial, by Joseph E.
Persico, which recounted the trial at which Jackson served as
chief U.S. prosecutor. (Jackson's bodyguard at this trial, former
ArmyStaff Sergeant
Moritz Fuchs, stated in January 2005 that the movie's implication
of a romance between Jackson and his secretary did not in fact
occur).

An extensive collection of Jackson's personal and judicial
papers is archived at the Manuscript Division of the Library of
Congress and open for research. Smaller collections are
available at several other repositories.

Portrayal in popular
culture

Robert H. Jackson has been portrayed by the following actors in
film, television and theater productions;[43]

^
Justice William O. Douglas wrote: “In the
original conference there were only four who voted that segregation
in the public schools was unconstitutional. Those four were Black,
Burton, Minton, and myself.” See Bernard Schwartz, Decision: How the Supreme
Court Decides Cases, page 96 (Oxford 1996). Likewise,
Justice Felix Frankfurter wrote: “I have no
doubt that if the segregation cases had reached decision last term,
there would have been four dissenters – Vinson, Reed, Jackson, and
Clark.” Id.

Frank, John P., The Justices of the United States Supreme
Court: Their Lives and Major Opinions (Leon Friedman and Fred
L. Israel, editors) (Chelsea House Publishers: 1995) ISBN
0791013774, ISBN 978-0791013779.

Sourced

Judicial
opinions

The power of citizenship as a shield against oppression was
widely known from the example of Paul's Roman citizenship, which
sent the centurion scurrying to his higher-ups with the message:
"Take heed what thou doest: for this man is a Roman".

The price of freedom of religion or of speech or of the press
is that we must put up with, and even pay for, a good deal of
rubbish.

United States v. Ballard, 322 U.S. 78, 95 (1944)
(dissenting). Often incorrectly reported as "The price of freedom
of religion, or of speech, or of the press, is that we must put up
with a good deal of rubbish".

A confession is wholly and incontestably voluntary only if a
guilty person gives himself up to the law and becomes his own
accuser.

Ashcraft v. Tennessee, 322 U.S. 143, 161 (1944).

The physical power to get the money does not seem to me
a test of the right to tax. Might does not make right even in
taxation. To hold that what the use of official authority
may get the state may keep, and that if it cannot get hold of a
nonresident stockholder it may hold the company as hostage for him,
is strange constitutional doctrine to me.

Korematsu was born on our soil, of parents born in Japan. The
Constitution makes him a citizen of the United States by nativity
and a citizen of California by residence. No claim is made that he
is not loyal to this country. There is no suggestion that apart
from the matter involved here he is not law abiding and well
disposed. Korematsu, however, has been convicted of an act not
commonly a crime. It consists merely of being present in the state
whereof he is a citizen, near the place where he was born, and
where all his life he has lived.
A citizen's presence in this locality, however, was made a crime
only if his parents were of Japanese birth. Had Korematsu been one
of four - the others being, say, a German alien enemy, an Italian
alien enemy, and a citizen of American-born ancestors, convicted of
treason, but on parole - only Korematsu's presence would have
violated the order. The difference between their innocence and his
crime would result, not from anything he did, said, or thought,
different than they, but only in that he was born of different
racial stock.Now, if any fundamental assumption underlies our system, it
is that guilt is personal and not inheritable. Even if all
of one's antecedents had been convicted of treason, the
Constitution forbids its penalties to be visited upon him. But here
is an attempt to make an otherwise innocent act a crime merely
because this prisoner is the son of parents as to whom he had no
choice, and belongs to a race from which there is no way to resign.
If Congress in peace-time legislation should enact such a criminal
law, I should suppose this Court would refuse to enforce it.

[T]he effect of the religious freedom Amendment to our
Constitution was to take every form of propagation of religion out
of the realm of things which could directly or indirectly be made
public business, and thereby be supported in whole or in part at
taxpayers' expense. That is a difference which the Constitution
sets up between religion and almost every other subject matter of
legislation, a difference which goes to the very root of religious
freedom[...] This freedom was first in the Bill of Rights because
it was first in the forefathers' minds; it was set forth in
absolute terms, and its strength is its rigidity. It was intended
not only to keep the states' hands out of religion, but to keep
religion's hands off the state, and, above all, to keep bitter
religious controversy out of public life by denying to every
denomination any advantage from getting control of public policy or
the public purse.

I do not know whether it is the view of the Court that a judge must be thick-skinned or
just thick-headed, but nothing in my experience or observation
confirms the idea that he is insensitive to publicity. Who does not
prefer good to ill report of his work? And if fame — a good public
name — is, as Milton
said, the "last infirmity of noble mind", it is frequently the
first infirmity of a mediocre one.

Craig v. Harney, 331 U. S. 367, 396 (1947).

The Court's reasoning adds up to this: The Commission must be
sustained because of its accumulated experience in solving a
problem with which it had never before been confronted! I give up.
Now I realize fully what Mark Twain meant when he said, 'The more you
explain it, the more I don't understand it.'

No one will question that this power is the most dangerous one
to free government in the whole catalogue of powers. It usually is
invoked in haste and excitement when calm legislative consideration
of constitutional limitation is difficult. It is executed in a time
of patriotic fervor that makes moderation unpopular. And, worst of
all, it is interpreted by judges under the influence of the same
passions and pressures. Always, as in this case, the Government
urges hasty decision to forestall some emergency or serve some
purpose and pleads that paralysis will result if its claims to
power are denied or their confirmation delayed.

Under these circumstances, except for any personal humiliation
involved in admitting that I do not always understand the opinions
of this Court, I see no reason why I should be consciously wrong
today because I was unconsciously wrong yesterday.

But we have grounds to assume also that the normal proportion
of them are subject to that very human weakness, especially
displayed in Washington, which leads men to "crook the pregnant
hinges of the knee where thrift may follow fawning."

Terminiello
v. City of Chicago, 337 U.S. 1 (1949) (dissenting);
paraphrase and well-known misquote of "There is danger that, if the
court does not temper its doctrinaire logic with a little practical
wisdom, it will convert the constitutional Bill of Rights into a
suicide pact."

But when notice is a person's due, process which is a mere
gesture is not 'due process.'

But we must not forget that in our country are evangelists and
zealots of many different political, economic and religious
persuasions whose fanatical conviction is that all thought is
divinely classified into two kinds — that which is their own and
that which is false and dangerous.

The priceless heritage of our society is the unrestricted
constitutional right of each member to think as he will. Thought
control is a copyright of totalitarianism, and we have no claim to
it. It is not the function of the government to keep the
citizen from falling into error; it is the function of the citizen
to keep the government from falling into error. We could
justify any censorship only when the censors are better shielded
against error than the censored.

I am entitled to say of that opinion what any discriminating
reader must think of it---that it was as foggy as the statute the
Attorney General was asked to interpret.

Reviewing a position that Jackson had taken as Attorney
General, which he now felt should be overruled. McGrath v.
Kristensen, 340 U.S. 162, 176 (1950) (concurring).

But an escape less self-depreciating was taken by Lord
Westbury, who, it is said, rebuffed a barrister's reliance upon an
earlier opinion of his Lordship: "I can only say that I am amazed
that a man of my intelligence should have been guilty of giving
such an opinion". If there are other ways of gracefully and
good-naturedly surrendering former views to a better considered
position, I invoke them all.

The day that this country ceases to be free for
irreligion it will cease to be free for religion - except
for the sect that can win political power.

Zorach v. Clauson, 343 U.S. 306, 325 (1952)
(dissenting).

Nothing in our Constitution is plainer than that declaration of
a war is entrusted only to Congress. Of course, a state of war may
in fact exist without a formal declaration. But no doctrine that
the Court could promulgate would seem to me more sinister and
alarming than that a President whose conduct of foreign affairs is
so largely uncontrolled, and often even is unknown, can vastly
enlarge his mastery over the internal affairs of the country by his
own commitment of the Nation's armed forces to some foreign
venture.

Reversal by a higher court is not proof that justice is thereby
better done. There is no doubt that if there were a super-Supreme
Court, a substantial proportion of our reversals of state courts
would also be reversed. We are not final because we are
infallible, but we are infallible only because we are
final.

We granted certiorari, and in this Court the parties changed
positions as nimbly as if dancing a quadrille.

Orloff v. Willoughby, 345 U.S. 83, 87 (1953).

I should concur in this result more readily if the Court could
reach it by analysis of the statute instead of by psychoanalysis of
Congress. When we decide from legislative history, including
statements of witnesses at hearings, what Congress probably had in
mind, we must put ourselves in the place of a majority of
Congressmen and act according to the impression we think this
history should have made on them. Never having been a Congressman,
I am handicapped in that weird endeavor. That process seems to me
not interpretation of a statute but creation of a statute.

United States v. Public Utilities Commission, 345 U.S.
295, 319 (1953) (concurring).

Those who begin coercive elimination of dissent soon find
themselves exterminating dissenters. Compulsory unification of
opinion achieves only the unanimity of the graveyard.

Government of limited power need not be anemic government.
Assurance that rights are secure tends to diminish fear and
jealousy of strong government, and by making us feel safe to live
under it makes for its better support.

319 U.S. at 636.

The very purpose of a Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy, to place
them beyond the reach of majorities and officials, and to establish
them as legal principles to be applied by the courts. One's right
to life, liberty, and property, to free speech, a free press,
freedom of worship and assembly, and other fundamental rights may
not be submitted to vote; they depend on the outcome of no
elections.

319 U.S. at 638.

We set up government by consent of the governed, and the Bill
of Rights denies those in power any legal opportunity to coerce
that consent. Authority here is to be controlled by public opinion,
not public opinion by authority.

319 U.S. at 641.

Those who begin coercive elimination of dissent soon
find themselves exterminating dissenters. Compulsory unification of
opinion achieves only the unanimity of the graveyard.

319 U.S. at 641.

We can have intellectual individualism and the rich
cultural diversities that we owe to exceptional minds only at the
price of occasional eccentricity and abnormal attitudes.
When they are so harmless to others or to the State as those we
deal with here, the price is not too great. But freedom to differ
is not limited to things that do not matter much. That would be a
mere shadow of freedom. The test of its substance is the right to
differ as to things that touch the heart of the existing order.

319 U.S. at 641-42.

If there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe
what shall be orthodox in politics, nationalism, religion, or other
matters of opinion, or force citizens to confess by word or act
their faith therein.

In 1945, at the request of President Franklin Delano
Roosevelt, Justice Jackson took leave from the Supreme Court to act
as a prosecutor in the Nuremberg trials of accused Nazi war
criminals.

If we can cultivate in the world the idea that aggressive
war-making is the way to the prisoner's dock rather than the way to
honors, we will have accomplished something toward making the peace
more secure.

We must make clear to the Germans that the wrong for which
their fallen leaders are on trial is not that they lost the war,
but that they started it. And we must not allow ourselves to be
drawn into a trial of the causes of the war, for our position is
that no grievances or policies will justify resort to aggressive
war. It is utterly renounced and condemned as an instrument of
policy.

The privilege of opening the first trial in history for crimes
against the peace of the world imposes a grave responsibility.
The wrongs which we seek to condemn and punish have been so
calculated, so malignant, and so devastating, that civilization
cannot tolerate their being ignored, because it cannot survive
their being repeated. That four great nations, flushed with victory
and stung with injury stay the hand of vengeance and voluntarily
submit their captive enemies to the judgment of the law is one of
the most significant tributes that Power has ever paid to
Reason.

Opening Address to the International Military Tribunal at the
Nuremberg Trials (November 10,
1945).

If we can cultivate in the world the idea that aggressive
war-making is the way to the prisoner's dock rather than the way to
honors, we will have accomplished something toward making the peace
more secure.

Opening Address to the International Military Tribunal at the
Nuremberg Trials (November 10,
1945).

We must never forget that the record on which we judge these
defendants is the record on which history will judge us tomorrow.
To pass these defendants a poisoned chalice is to put it to our own
lips as well.

Nuremberg Tribunal.

Opening Address to the International Military Tribunal at the
Nuremberg Trials (November 10,
1945).

If certain acts of violation of treaties are crimes, they are
crimes whether the United States does them or whether Germany does
them, and we are not prepared to lay down a rule of criminal
conduct against others which we would not be willing to have
invoked against us.

International Conference on Military Trials, London,
1945, Dept. of State Pub.No. 3080 (1949), p.330.

Books and
articles

The office of the lawyer, however poorly filled, is too
delicate, personal and confidential to be occupied by a
corporation.

"Functions of the Trust Company in the Field of Law", 52
New York State Bar Association Report 142 (1929).

Our people do not want barren theories from their democracy.
Maury Maverick has expressed very quaintly, but clearly, what they
really want when he says: 'We Americans want to talk, pray, think
as we please — and eat regular'.

Speech to the Commonwealth Club of San Francisco (1939),
reported in Eugene C. Gerhart, America's Advocate: Robert H.
Jackson (1958), p. 456.

He loved his profession, he had a real sense of dedication to
the administration of justice, he held his head high as a lawyer,
he rendered and exacted courtesy, honor and straightforwardness at
the Bar. He respected the judicial office deeply, demanded the
highest standards of competence and disinterestedness and dignity,
despised all political use of or trifling with judicial power, and
had an affectionate regard for every man who filled the exacting
prescription of the just judge. The law to him was like a religion,
and its practice was more than a means of support; it was a
mission. He was not always popular in his community, but he was
respected. Unpopular minorities and individuals often found in him
their only mediator and advocate. He was too independent to court
the populace - he thought of himself as a leader and lawgiver, not
a mouthpiece.

Often his name was, in a generation or two, forgotten. It was
from this brotherhood that America has drawn its statesmen and its
judges. A free and self-governing Republic stands as a monument for
the little-known and unremembered as well as for the famous men of
our profession.

"Tribute to Country Lawyers: A Review", 30 A.B.A
Journal 139 (1944).

I used to say that, as Solicitor General, I made three
arguments in every case. First came the one I had planned – as I
thought, logical, coherent, complete. Second was the one actually
presented – interrupted, incoherent, disjointed, disappointing. The
third was the utterly devastating argument that I thought of after
going to bed that night…

On your first appearance before the Court, do not waste your
time and ours telling us so. We are likely to discover for
ourselves that you are a novice but will think none the less of you
for it. Every famous lawyer had his first day at our bar, and
perhaps a sad one….Be respectful, of course, but also be
self-respectful, and neither disparage yourself nor flatter the
Justices. We think well enough of ourselves already.

When the Court moved to Washington in 1800, it was provided
with no books, which probably accounts for the high quality of
early opinions.

The Supreme Court in the American System of Government
(1955), p. 30.

My philosophy has been and continues to be that [the Court]
cannot and should not try to seize the initiative in shaping the
policy of the law, either by constitutional interpretation or by
statutory construction. While the line to be drawn between
interpretation and legislation is difficult, and numerous dissents
turn upon it, there is a limit beyond which the Court incurs the
just charge of trying to supersede the law-making branches. Every
Justice has been accused of legislating and every one has joined in
that accusation of others. When the Court has gone too far, it has
provoked reactions which have set back the cause it is designed to
advance and has sometimes called down upon itself severe rebuke.

The Supreme Court in the American System of Government
(1955), p. 79-80.

When we went to school we were told that we were governed by
laws, not men. As a result of that, many people think there is no
need to pay any attention to judicial candidates because judges
merely apply the law by some mathematical formula and a good judge
and a bad judge all apply the same kind of law. The fact is that
the most important part of a judge's work is the exercise of
judgment and that the law in a court is never better than the
common sense judgment of the judge that is presiding.

Something happens to a man when he puts on a judicial robe, and
I think it ought to. The change is very great and requires
psychological change within a man to get into an attitude of
deciding other people's controversies, instead of waging them. It
really calls for quite a changed attitude. Some never make it - and
I am not sure I have.

Reported in Leon Friedman and Fred L. Israel, 4 The
Justices of the United States Supreme Court 1789-1969, 2563
(1969).

"The Federal
Prosecutor" (1940)

"The Federal Prosecutor", 24 J. Am. Judicature
Soc'y 18 (1940) (Address delivered at the Second Annual
Conference of United States Attorneys, April 1, 1940).

The prosecutor has more control over life, liberty, and
reputation, than any other person in America.

Nothing better can come out of this meeting of law enforcement
officers than a rededication to the spirit of fair play and decency
that should animate the federal prosecutor. Your positions are of
such independence and importance that while you are being diligent,
strict, and vigorous in law enforcement you can also afford to be
just. Although the government technically loses its case, it has
really won if justice has been done.

The qualities of a good prosecutor are as elusive and as
impossible to define as those which mark a gentleman. And those who
need to be told would not understand it anyway. A sensitiveness to
fair play and sportsmanship is perhaps the best protection against
the abuse of power, and the citizen's safety lies in the prosecutor
who tempers zeal with human kindness, who seeks truth and not
victims, who serves the law and not factional purposes, and who
approaches his task with humility.

The Struggle for Judicial Supremacy: A Study in Crisis in
American Power Politics (1941)

For a century every contest with the Supreme Court has ended in
evading the basic inconsistency between popular government and
judicial supremacy.

Of course, such judicial misconstruction theoretically can be
cured by constitutional amendment. But the period of gestation of a
constitutional amendment, or of any law reform, is reckoned in
decades usually; in years, at least. And, after all, as the Court
itself asserted in overruling the minimum-wage cases, it may not be
the Constitution that was at fault.

P. 297.

"The Task of Maintaining Our Liberties: The Role of the Judiciary"
(1953)

"The Task of Maintaining Our Liberties: The Role of the
Judiciary", 39 A.B.A. J. 961 (1953).

For over a century it has been the settled doctrine of the
Supreme Court that the principle of stare decisis has only limited
application in constitutional cases. It might be thought that if
any law is to be stabilized by a court decision it logically should
be the most fundamental of all law -- that of the Constitution. But
the years brought about a doctrine that such decisions must be
tentative and subject to judicial cancellation if experience fails
to verify them. The result is that constitutional
precedents are accepted only at their current valuation and have a
mortality rate almost as high as their authors.

P. 962.

There is no such thing as an achieved liberty; like
electricity, there can be no substantial storage and it must be
generated as it is enjoyed, or the lights go out.

P. 962.

Not every defeat of authority is a gain for individual freedom,
nor every judicial rescue of a convict a victory for liberty.

P. 964.

About

His speech breaks through the printed page. He was one of those
rare men whose spoken word survives in type.

Self-reliance, good-humored tolerance, recognition of the other
fellow's right to be and to thrive, even though you may not think
he is as good as you are, suspicion of authority as well as
awareness of its need, disdain of arrogance and self-righteousness,
a preference for truculent independence over prudent deference and
conformity - these were the feelings that shaped his outlook on
life. He liked his kind without being sentimental about it; he was
gregarious but shy about intimacies.

He had a quiet courage, which never led to a bellow of defiance
but which permitted him to take in every instance the action he
thought best without discernible thought of criticism or personal
injury. He was modest in manner, yet supremely confident of himself
and his judgment. He had a calm which no crisis could disturb, and
standards of honorable conduct which were both rigorous and
unshakeable.

Robert Jackson represented the advocate at his best. He
possessed the rare combination of a good jury personality and the
qualities of a profound lawyer. He knew how to talk persuasively to
a jury of Chautauqua County farmers, yet he could argue the points
of law involved in the case with great learning and with
unanswerable logic, either before the trial judge or an appellate
court. He had high standards of craftsmanship as a lawyer; he was
thorough and painstaking in preparation.

He had a reservoir of learning, from which he drew gracefully
and effortlessly. But the most marked quality of his judicial and
non-judicial writing was not the ability to borrow an apt quotation
or to find an idea well expressed by one who had written before
him; it was the ability to think brilliantly in original and bold
fashion and to express his thoughts in forceful and eloquent
English of a style inimitably his own. His writing was pithy and
pungent; yet he never sacrificed clarity of thought for a
well-turned phrase. He was a master of the paradox; he had a great
love of alliteration and his antithetical statements were gems. Yet
his wit never descended to the frivolous; it always added a barb to
the telling point. His wit was especially telling when turned upon
himself or his Court.

Nature had given him a bright, strong mind--it was one of the
best three or four, possibly five, of the Court during his years of
service. It was a disciplined mind--self disciplined, and sharpened
by the varied incidents of a general practice. He had attended no
college. His engaging style, his easy acquaintance with good
literature, he had acquired for himself. Even in his one year of
law school, his training had been in practical subjects taught by
practical men. The assurance and courage that come from
professional mastery, that too he had won for himself. So he became
an exemplar of the best virtues we attribute to our tough
common-law system. He thought in terms of concrete operations: a
good judge should feel responsible for the practicality of his
judgments. He displayed, too, a constant concern that the Court's
pronouncements convey to the practitioner a workable rule of
conduct. To his fingertips, he retained a feel for active practice.
This was the American lawyer at his best. What he made of himself
is an inspiration and a challenge to all who follow his calling.

"Mr. Justice Jackson"
(1955)

To an unusual degree in the history of the Court, Justice
Jackson wrote as he felt. In his case the style was the man….He
wrote as he talked and he talked as he felt. The fact that his
opinions were written talk made them as lively as the liveliness of
his talk.

He had 'impish candor', to borrow one of his own phrases.
Candor, indeed, was one of his deepest veins.

There was nothing stuffy about him and therefore, nothing
stuffy about his writing.

No man who ever sat on the Supreme Court, it seems to me,
mirrored the man in him in his judicial work more completely than
did Justice Jackson